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Saturday, May 16, 2009

How is it, I wonder, that asking for a mere investigation into the people who ordered torture (and lied about it) makes you a crazy person, but calling for the ouster of those who may have lied about being told about torture is perfectly rational and mainstream?

For that matter, why is it that Newt Gingrich is mainstream at all? I don't see John Edwards or Elliot Spitzer being called on as elder statesmen.

The WaPo has a profile on Diane Wood entitled "Possible Court Pick Is Used to Dueling on Bench". It details her regular sparring sessions with fellow 7th Circuit judges, UChicago profs, and intellectual heavies Richard Posner and Frank Easterbrook.

It also gives a little more background on the infamous "RICO applies to anti-abortion protesters" ruling that pro-life groups are complaining about. Specifically, that the reason the Supreme Court overruled her was that "the actions of the anti-abortion protesters were criminal yet did not constitute extortion." Y'all really want to hang your hat on that?

Caption: President Barack Obama bends over so the son of a White House staff member can pat his head during a family visit to the Oval Office May 8, 2009. The youngster wanted to see if the President's haircut felt like his own.

Utah Governor Jon Huntsman (R), who had been carving out a niche for himself as the leader of the "not insane" wing of the GOP, has accepted an appointment by President Obama to become ambassador to China. Huntsman speaks Mandarin fluently and did his Mormon mission to Taiwan.

A Kos blogger says this means Huntsman is throwing away any chance at the 2012 nod. That's probably right, although in different circumstances it could give Hunstman even more credibility as a "country over partisanship" kind of candidate. Unfortunately for him, the body of the GOP considers service to the Obama administration to be apostasy, so I doubt it will work out that way in the end.

UPDATE: As Steve Benen points out, Hunstman will only be 56 in 2016, so that might be the better shot -- assuming, again, that the Republican base steps back from the precipice.

Friday, May 15, 2009

I’m actually 100 percent positive that were Oprah on the Supreme Court she would do a good job. In a lot of ways, it’s just not that difficult a job. You need a reasonably intelligent, public-spirited individual who’s aware of their own limits and does a good job of hiring clerks. To be a truly great justice requires more than that, but it’s not as if putting a TV personality on the court would lead to her making “wacky judicial bloopers” or something. The difficult, controversial cases that come before the Supreme Court are precisely the cases where the answer isn’t in your bar exam study book.

Mmm...no. I think there is an assumption amongst the lay folk that the Supreme Court just sits there twiddling its thumbs until somebody brings it the year's abortion case. It's certainly true that every Supreme Court case is difficult and isn't the sort of thing that one finds in a hornbook. And some Court cases are tough because they touch on politically controversial issues that lie on the fault lines of our most fundamental value debates. But others are difficult because they implicate genuinely vexing problems of substantive or procedural law that nonetheless carry with them very little political valence. I wonder how a non-lawyer would even begin to think about any of the Supreme Court cases one would find in my civil procedure textbook, for example.

In a release announcing the analysis Charmaine Yoest, president of the organization, says, "The records of these potential nominees are absolutely the most radically pro-abortion our country has ever seen. Every potential nominee is pro-abortion and would advance President Obama's radical agenda." She vowed to "make the pro-life voice heard" during the confirmation process.

Though they do tag one candidate is the last amongst equals -- Judge Diane Wood. They attack her for ruling against partial birth abortion bans (which, until the Supreme Court decided that they don't need no stinkin' evidence, were pretty well settled as unconstitutional under Stenberg v. Carhart), trying to strike down an Indiana informed consent law, and (most damningly) trying to apply RICO to certain anti-abortion protesters.

As usual, Obama gets it. Even when he was running for President, Barack Obama demonstrated he had a far more sophisticated grasp on what Jews care about vis-a-vis Israel and Zionism than the average American politician. I recently noted that a focus on recognition would be a wise adjustment on how we bring Israeli and Palestinian officials back to the negotiating table. And apparently, Obama agrees -- putting out regional Arab recognition for Israel on the table as the sweetener to get Bibi Netanyahu to publicly recognize a two-state solution.

Do I expect this to be a panacea? No, I don't -- there are rejectionists on both sides who will likely continue to make trouble. Nonetheless, it is worth noting that facially, Netanyahu and Hamas on the same page: neither recognizes the right of the opposing nation to exist. Hamas rejects Israel's right to exist; Netanayahu rejects Palestine's right to exist. Marginalizing that stance has to be priority one. There is no reason -- none -- to accept that as a tolerable position. Whatever barriers there are to peaceful coexistence between two states, it seems obvious to me that the refusal of certain parties to accept that as the end goal is rather high on the list.

Thursday, May 14, 2009

The comments to the post I flagged earlier this week are one of the clearest examples of what happens when Jews refuse to take a subservient position before their Christian fellows. For noting that the Catholic Church hardly has clean hands with regards to the Holocaust (particularly from its source as a wellspring of European anti-Semitism for literally millennia), I'm told that the Jews should apologize for communism and (obviously) for killing Christ. It's amazing just how shallow the old views lie buried.

Christians today respect Jews precisely as far as they have in the past: namely, they respect Jews who don't assert any Jewishness. In the past, we had to convert. Today, we simply have to shut up and not assert any theological or social autonomy. The minute Jews try and resist bogus "Judeo-Christian" claims made in our name, or imply that Christian practice might not actually be religion perfected (particularly in how it treats Jews), or note our own experiences being oppressed and persecuted by Christians, all that talk of fellowship flies out the window. There is never -- never -- any acknowledgment that there might a problem on their end. It's always Jewish something -- neurosis, obstinacy, stubbornness, bloodlust, avarice, whatever the slur d'jour -- that is to blame. Jews have no active role in this worldview.

As far as I can see it, the relationship the Christian community (left and right) wants with the Jews is completely hierarchical. They are the enlightened, and we are the damned; they are the teachers, and we are the pupils; they are master, and we are the servant. I'd say it has to change if there is to be any improvement in Jewish-Christian relations. But honestly, I don't see any impetus for Christians to change the ways -- they've shown no inclination that they think the current state of affairs is remotely problematic, and when Jews try to raise their voices to speak out, we're ignored, shunned, or labeled the problem.

It's moments like this when I get full-on separatist. There is simply no indication that Christians feel like listening, learning, or stepping back from the unbelievable arrogance which has characterized their relationship with Jews for centuries. There are individuals who have broken from the mold, and I salute them, but they're few and far between, and might as well be completely absent against the broader backdrop of the Christian community, which continues to organize itself in a fundamentally anti-Semitic, imperialistic fashion. Well forget that. If they feel like having a conversation as equals, they know where to find me. In the meantime, they can know that as far as I'm concerned, they're implicated in an anti-Semitic agenda top to bottom.

Apology #1: He didn't have his teleprompter, and screwed up in trying to explain how he, unlike Schumer, believes in "traditional values". Which generally have been defined to the complete exclusion of Jewish perspectives anyway (that's my addition).

Apology #2: When I referred to him as Jewish, it wasn't because I don't like Jewish people [of course not! --DS] ... I shouldn't have gotten into this Jewish business because it distracts from the issue."

Wednesday, May 13, 2009

CNN has what it claims are Obama's final six for the Supreme Court opening. Five are no surprise: Sonia Sotomayor, Diane Wood, Elena Kagan, Janet Napolitano, and Jennifer Granholm. The sixth has gotten almost no buzz until now: California Supreme Court Justice Carlos Moreno.

I highly, highly doubt Moreno will get the nod. First, there is no reason to go the whole stealth candidate route -- there is a huge Democratic majority in the Senate and plenty of well-known candidates who should sail through. Second, Moreno will undoubtedly come under scrutiny for his vote on the gay marriage decision -- if he voted to strike down the law, he'll stir up a hornet's nest on the right, and if he voted to uphold it, I can't imagine he'd be on the list. Third, given that Moreno doesn't seem any more distinguished than the other candidates, what's the rationale for appointing another man to the bench?

This isn't any offense to Moreno, who has excellent credentials and I'm sure would make a fine Justice. I just think he's on the list to be on the list.

Surrounding the call for Israel and Palestine to negotiate their way to a settlement is a sort of odd mini-game about what demands are "reasonable" for each side to make. For example, the former UN envoy for Israeli-Palestinian affairs complained in his outgoing memo to Sec. General Ban Ki-Moon that Israel was taking "an essentially rejectionist stance with respect to dealing with the Palestinians", such as the "unrealistic ... demand for recognition of Israel." It is hard for me to wrap my head around what requests are "reasonable" for Israel to make if recognition is taken off the table -- certainly, territorial concessions or demilitarization would seem to be far greater demands on the Palestinian polity than recognition would be.

I think of this because I'm beginning to wonder if we might need to shift a little in how we approach trying to restart Israeli/Palestinian peace negotiations. The refrain we keep hearing about Israel is "they want security, they want security, they want security." And so requests of the Palestinians focus on providing security guarantees, cracking down on terrorism, arresting bombmakers and militants, etc..

It's obviously true that Israel wants to be secure. But I think that it has crossed the point at which it no longer thinks that its Palestinian interlocutors can provide security, even if they wanted to. They don't believe that negotiations or withdrawals or accords will really materially affect their security standpoint in any way. The Gaza withdrawal and, more fundamentally, the Lebanon withdrawal both did tremendous damage to the classic "land for peace" formula. If Fatah signs a ceasefire, Hamas will shoot off rockets. If Hamas renounces violence, Islamic Jihad will pick up the slack. No rest for the weary.

Israelis are, at this point, willing to put their trust in tanks and F-16s to keep them safe. If they think that they can achieve peace through firepower alone, they're delusional. But I don't think that's the thought process. It is something significantly more despondent -- a resignation to continual low-grade insurgency and terrorism for the foreseeable future. The army won't put a stop to the violence, it will just keep it at manageable levels. Israelis can't see anything more than that on their horizon. And the problem with this outlook is that it takes security off the negotiating table -- Israelis no longer think there is anything worth talking about on the subject.

There is one thing I think the Israelis crave even more than security, however, and that is recognition. Israel was born out of rejection: The rejection of the Jews in Europe through the Holocaust and the expulsion of the Jewish communities in the Arab world. Israel was created in the midst of rejection, with the Arab bloc voting en masse against partition. Since then, the Arab world has maintained a consistent policy of boycott -- going as far as to make it illegal to advocate for an equal accepting relationship with the Jewish state. From a Jewish perspective, the history of Israel mimics the history of the Jews -- constant rejection, degradation, hatred, discrimination and persecution. What Israelis pine for is a reversal of this dynamic: A forthright statement that their existence is not a mistake, not an affront, not blasphemy, not colonial, not temporary, and not negotiable. Getting this would represent a huge shift in the status quo. I can't help but think it would likewise advance the cause of peace inordinately.*

Acceptance is one thing Israel can never get on its own. Israel can depend on its economy to keep it strong, its military to keep it safe, its nuclear weapons to ward off annihilation. It can't gain recognition by any means but through the negotiating table. This makes recognition, more than security guarantees, the Palestinians most powerful bargaining chip -- if they dared to use it. Indeed, this is what makes the Arab Peace Initiative so alluring.

The determinations about what requests are "reasonable" and what ones aren't are always value judgments. Even when they are predicated on political considerations, this is still the case, because we might say that a polity which refuses to accept a certain demand upon them is behaving in a morally negligent way and is thus worthy of scorn and critique. It might be worth considering putting recognition at the front-burner. If the UN took a strong stand in demanding that its member-states (and indeed, all parties who wish to be taken seriously within its halls) express their willingness to recognize the state of Israel, it could make an "unreasonable" demand into a "reasonable" one. And we might see some progress.

* I think you observe a similar dynamic on the Palestinian side. While they certainly raise the issue of their vulnerability to Israeli military incursions, and the tremendous stress it places upon their population, Palestinian political demands and behavior also seem less concerned with "security" than with recognition. The stated end goal isn't a situation in which Palestinians no longer have to worry about Israeli gunships (though hopefully that comes part and parcel). It's one where a Palestinian state is recognized and they are welcomed into the community of nations as equals. This is why, I think, Bibi Netanyahu's "economic peace" plan is going to flop so badly. It doesn't get at what the Palestinians truly want. Similarly, I've observed a strong stance people take whereby they say "we're not shooting at Jews -- what more could they possibly want?" The idea is that so long as Israel isn't in an actual state of war with a given entity, then it has exhausted any and all moral or political claims it could possibly have vis-a-vis that entity. That isn't the case. There are some things people want even more than physical security, believe it or not.

Mike Madison uses the recent Nuggets/Mavericks game to ask whether one can claim a right to be punished. Admittedly, this is based off a somewhat unique situation -- a late-game foul designed to stop the clock. But there are some parallels to "real life". Think civil disobedience. You break the law to get the great media shot of being dragged away, arrested. But suppose the police officers just agree to let you do what you're doing, so as to not feed the cameras. Can you claim that they are breaching their duty as well?

Eric Posner's read of the data indicates that Judge Sotomayor is a roughly average appellate court judge. It also seems to imply that now-Justice Alito was towards the bottom of the pack. And he overcame the horrible prejudice we direct towards White people to boot!

Tuesday, May 12, 2009

I mean that in the weak sense -- there are certain phrases that I rely upon relatively heavily, and show up disproportionately often in my speech. I know of some folks with strong verbal tics -- they'll end every other sentence with "right?" or something of that sort. I don't think I do that. I just have some distinctive phrases. And honestly, it's something I like about me.

I don't think I know what all of them are. But I'll list the ones I do know, and folks who know me can fill in any others they've noticed.

So the Jews who attended Pope Benedict XVI's Holocaust memorial speech were not too pleased, hoping that the Pope would take the opportunity to express regret on behalf of the Church for its role in the Shoah. The Pope refrained to do so, and Israelis are disappointed. For his part, Alberto Hurtado is, shall we say, "outraged by the outrage", in a spectacularly arrogant post entitled "The Catholic Church has to Apologize???" (yes, with the three question marks).

Hurtado claims that "the Church SAVE[D] more Jews than any other organization (possibly outside the Allied Forces)". Let's ignore the absurd parenthetical (the Allies and Russians together are responsible for saving every Jew who survived). I'm pretty well versed in Holocaust history and literature. In the class I took several years ago, "Moral and Theological Implications of the Holocaust", we had a substantial unit on the role of the Catholic Church in the atrocities. The interpretation of the historical events are disputed, but all told the story is hardly one of absolution.

It is not true to say that the Church ignored or endorsed the genocide occurring around it -- it did provide some safe havens, and did at times speak out against the atrocities. But by and large its diplomatic position was of studious neutrality, and would refuse to pass judgment on many discriminatory policies passed against Jews by German occupiers or even specifically endorsed them as not in conflict with Catholic teachings. We also can't ignore the fact that the Catholic Church was a primary historical source for the deep, vicious European anti-Semitism that was the only reason the Holocaust was possible in the first place. Even if the current Papal leadership was more enlightened by 1940, "on the ground" there was still plenty of Catholic anti-Semitism that was decidedly lethal to Jews (something which Pope Benedict, who attempted to reverse the excommunication of a Holocaust denier, should be more attuned to than most). Some Jews were saved by the shield of the Catholic Church in Rome, many more were skewered by the sword of the Catholic polity in Poland. Just as it has been for most of its existence, the Catholic Church as a totality was an institution that held much peril for Jews during WWII.

Ultimately, even as an institution the Catholic Church was quite cautious in how it opposed the Holocaust, rarely taking particularly bold moral or political stands and doing little that might threaten its own power or influence. We might say the Church exhibited an enlightened neutrality, and we might also say that this was a great cry better than many of its neighbors. But it still carries its own share of culpability, historically and contemporaneously, and that deserves apology.

But amazingly, this wasn't the most offensive part of Hurtado's post. While I find the Catholic (really, Gentile) defensiveness over their complicity in past and present anti-Semitic practices unbelievably annoying, it is alas hardly anything new or notable. Where Hurtado crosses from "masseuse of history" into "unbelievable asshole" is when he starts lecturing Jews about how they don't understand their own theology. He actually writes the following passage, which made me honestly wonder if I was reading a parody: "[A]s a master Theologian I can tell Benedict's speech is incredibly sensitive to Jewish theology." He then talks for awhile about how important "names" and "memory" are in "Old Testament" models, and concludes:

So if the Pope invokes the perpetual reality of remembering and “knowing” the victims “names” he is in fact paying the victims of the Holocaust the highest theological complement he can give.

I’m really sick of this drummed up pettiness.

I am just baffled by the lack of awareness here. I really am. If we didn't take Pope Benedict's statement well, it isn't because we're misinterpreting our own traditions. Jews get to decide what we find theologically complimentary.

We're looking at a major dose of Christian conceit which aggregates to itself the right to tell Jews what their own religion is. One might think, for example, that post-Holocaust Jewish theology might be relevant to this discussion, but it doesn't show up anywhere (indeed, I'm curious if Hurtado has any familiarity with it) -- I suspect because Christians are heavily invested in a model of Judaism that says the tree bears no more fruit: Everything there is to know about Judaism can be deduced from Biblical texts written prior to the coming of Jesus. After Jesus, Judaism ceased to be a "live" religion, and became a relic or fossil. Does Hurtado understand just how flagrantly anti-Semitic this all is? Probably not -- if his views on the Holocaust are any indication, everything the Catholic Church does short of active participation in killings is a-okay.

If one wants to understand why Jewish/Catholic relations are at a nadir right now, this post is Exhibit A. The current incarnation of the Vatican has continually dealt with legitimate Jewish concerns with an attitude ofairydismissal. Of all the institutions that has zero right to take such a position towards the Jewish community, the Catholic Church ranks quite high. Their position seems to be because they aren't actively encouraging mass killings of Jews (anymore), they've satisfied all their obligations. I'm sorry, but I don't grade anti-Semitism on a curve.

Leah Ward Sears, currently Chief Justice of the Georgia Supreme Court, has not been at the top of my personal Supreme Court lists, simply because I think there are more progressive candidates out there. Nonetheless, I certainly wouldn't be displeased by her nomination, and she is without question an able, qualified jurist who would surely do honor to the Court as the first Black woman to serve in that role.

The Washington Post has a brief piece on Judge Sears detailing her perhaps somewhat unlikely friendship with Justice Clarence Thomas. Justice Thomas has rallied to her defense when Judge Sears has come under attack from conservative bomb-throwers in Georgia, and Judge Sears made sure he was present at her swearing-in as Chief Justice (to the disappointment of some of the civil rights old guard).

Dan Filler says some liberals might worry that Thomas might push Sears to the right once she's on the Court, as she already identifies as a "moderate with a progressive streak". But Filler points out that it is as possible that Sears might press Thomas to become more open to competing perspectives, which he has cast aside due to their association with his past political enemies. Or (most likely of all, Filler says), they will mostly maintain their respective judicial stances while likewise maintaining their friendship, ala Ginsburg and Scalia.

I think that this last option is probably the most likely as well. But the prospect of the debate intrigues me more than the possibility of a consensus. Justice Thomas' judicial outlook is indisputably connected to his identity as a Black man. I suspect that Judge Sears' positions are likewise connected to her position as a Black woman. Though occupying similar vantage points, they have interpreted their mandates in wildly different directions. The interplay they can have -- a debate that is to some degree internal to the Black experience -- is something that would benefit the judiciary and benefit the country.

This story about the effects of "Good News" clubs (via) in Public Elementary Schools really rang true to me. Not because it reflected personal experience -- my public educational experience was noteworthy for the degree of tolerance and ecumenicalism it evinced -- a quality which I associated with strong Church/State separation which in turn sparked my early zealotry on the subject. It was when I did research on the subject, and was exposed to locations where church and state could not be so easily disentangled, that I began to imagine what it would be like for me, as a Jew.* What view would I have had of school if I was told on the playground as a Kindergartener that I was doomed to Hell? If I was ostracized because my religion was wrong? If -- as far as I could tell -- the school itself was endorsing all of these views? I think it would be very hard to apply myself fully as a student. I think my education would have suffered immensely.

The article cites a Supreme Court case, Good News Club v. Milford Central School, 533 U.S. 98 (2001), as why many schools are so reticent to ban groups like this. The holding, as I understand it, was predicated off a blanket anti-religious group policy being a violation of the 1st Amendment. I wonder if a district instead made a more tailored finding that this group was sowing discord and having a negative impact on (certain?) students' ability to learn, whether it might be uphold even after Milford. It seems difficult to believe that schools would have to allow a "Bad News: Your Friends Are Inferior Hellbound Sinners Club" on campus. Yet, cheery name aside, that seems to be what the Good News Club does.

* One of the most illuminating pieces on this, for me anyway, was Frank Ravitch's "A Crack In The Wall: Pluralism, Prayer and Pain in the Public Schools," in Law and Religion: A Critical Anthology (Stephen Feldman ed., NYU Press 2000), pp. 296-314.

Monday, May 11, 2009

Apropos Jeffrey Rosen making unsubstantiated claims about Judge Sonia Sotomayor's intelligence, we find out this is rather old hat for Mr. Rosen. When Judge Diane Wood was appointed to the 7th Circuit by President Clinton, Rosen argued that she exemplified how "single-minded pursuit of diversity, combined with an eagerness to avoid controversy, has kept him from appointing the best available legal minds to the courts."

Of course, history has proven Rosen dead wrong, as Judge Wood has shown herself to be one of the brightest stars of the judiciary and is widely recognized as quite the intellectual heavyweight. One would have thought he might have gained some humility from the experience. Alas, he doesn't seem to have skipped a beat.

But as Scott Lemieux aptly points out, there is an extra layer of bizarro here: Judge Wood's credentials upon appointment (service in the Justice Department and longtime professor at the University of Chicago) were roughly identical to those of Antonin Scalia's when he was nominated to the D.C. Circuit. Yet nobody ever questioned Scalia's credentials -- indeed, Scalia has a somewhat overrated reputation as the intellectual titan of the Supreme Court. We saw the same delightful dynamic comparing the reactions that met longtime 3rd Circuit Appeals Judge and Princeton/Yale grad Samuel Alito's nomination to those that met the potential of longtime 2nd Circuit Appeals Judge and Princeton/Yale grad Sonia Sotomayor.

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